People v. Villanueva CA6

Filed 1/19/23 P. v. Villanueva CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H049951
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS102330B)
v.
RICARDO VILLANUEVA,
Defendant and Appellant.
In 2013, as part of a negotiated disposition, defendant Ricardo Villanueva pleaded
no contest to one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)),1 one
count of street terrorism (§ 186.22, subd. (a)), and admitted allegations supporting
criminal street gang (§ 186.22, subd. (b)(1)) and firearm enhancements (§ 12022.53,
subds. (c), (e)). Villanueva was sentenced to an aggregate term of 25 years in state
prison.
Villanueva now appeals following the denial of his petition for resentencing under
former section 1170.95 (Stats. 2018, ch. 1015, § 4).2 The parties agree that the trial court
erred in making certain factual findings and should not have denied Villanueva’s petition
at the prima facie stage. We concur. We therefore reverse the trial court’s order and
remand with directions.
1
Unspecified statutory references are to the Penal Code.
2
Section 1170.95 has been amended and renumbered as section 1172.6. (Stats.
2022, ch. 58, § 10, eff. June 30, 2022; see also Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
We will henceforth refer only to section 1172.6.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
On May 24, 2011, the Monterey County District Attorney filed an amended
information against Villanueva and a codefendant, Jesse Estrada Diaz. Villanueva was
charged with one count of first degree murder (§ 187, subd. (a); count 1), one count of
attempted first degree murder (§§ 664, 187, subd. (a); count 2), and one count of street
terrorism (§ 186.22, subd. (a); count 3). In addition, the information charged Villanueva
with gang allegations (§ 186.22, subd. (b)(1)) in connection with counts 1 and 2, and with
firearm allegations (§ 12022.53, subds. (c), (e)) in connection with count 2.
On October 3, 2013, Villanueva entered into a plea agreement, pleading no contest
to attempted murder, without premeditation (§§ 664, 187, subd. (a); count 2), street
terrorism (§ 186.22, subd. (a), count 3), and admitting the gang and firearm enhancement
allegations (§§ 186.22, subd. (b)(1), 12022.53, subds. (c), (e)).3 In exchange, the
remaining charges and allegations would be dismissed and Villanueva would receive a
stipulated sentence of 25 years in state prison. The trial court subsequently sentenced
Villanueva to a total term of 25 years, consisting of the lower term of five years on
count 2, plus 20 years for the firearm enhancement.
On January 5, 2022, Villanueva filed a pro per petition seeking resentencing
pursuant to section 1172.6. The trial court appointed counsel and, after the parties
submitted briefing on the matter,4 denied the petition for failure to state a prima facie
claim for relief.
3
The waiver of rights form did not contain any statement of facts about the crime
and enhancements to which Villanueva was pleading guilty or the theory of liability for
his conviction for attempted murder.
4
The district attorney submitted a copy of the transcript from the preliminary
examination as an exhibit to her opposition to Villanueva’s petition.
2
B. Factual background5
On October 1, 2010, the victims, John Doe 1 and John Doe 2, dropped a friend and
her baby off on Key Street in Salinas. As the victims stood in the street near their
vehicle, Villanueva and Diaz approached them. Diaz yelled “East Market Street,
motherfuckers,” before fatally shooting John Doe 1. John Doe 2 tried to run away, but
Villanueva “ ‘blocked’ ” him. Diaz shot John Doe 2 in the leg, and shot him again after
he fell to the ground. John Doe 2 survived, and was interviewed by police both at the
scene and at the hospital as he was treated.
When interviewed by police, Villanueva initially denied he was involved.
However, in a post-plea interview with the probation department, Villanueva said “he had
no idea that Diaz was going to shoot someone.” Villanueva also said that, contrary to
what John Doe 2 told police, he did not block John Doe 2’s path and he “was actually
trying to stay out of the way.”
II. DISCUSSION
Villanueva argues that the trial court erred in relying on the preliminary hearing
transcript in finding that he failed to state a prima facie case for relief under section
1172.6. He also claims that the court made factual findings at the prima facie stage and
impermissibly used those findings as a basis to deny relief.
The Attorney General agrees that the trial court erred in concluding that
Villanueva’s petition failed to state a prima facie case. Even if it were permissible for the
trial court to rely on the preliminary hearing transcript in evaluating the petition for
resentencing, it may not engage in factfinding in determining whether the petition sets
forth a prima facie claim for relief.
5
Because Villanueva pleaded no contest before trial, we derive the factual
background from the preliminary hearing transcript and the probation report.
3
We agree that the Attorney General’s concession is well-taken and will reverse the
order denying the petition for resentencing and remand for further proceedings.
A. Relevant legal principles
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
“amend[ed] the felony murder rule and the natural and probable consequences
doctrine . . . to ensure that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major participant of the
underlying felony who acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1, subd. (f).) To that end, the bill amended section 188, subdivision (a)(3),
which now requires that all principals to murder must act with express or implied malice
to be convicted of that crime, with the exception of felony murder under section 189,
subdivision (e). (Stats. 2018, ch. 1015, § 2.) A felony murder conviction under
section 189, subdivision (e), as amended by Senate Bill No. 1437, requires that the
defendant be the actual killer, an aider and abettor to the murder who acted with intent to
kill, or a major participant in the underlying felony who acted with reckless indifference
to human life. (Stats. 2018, ch. 1015, § 3.)
In addition to the amendments to sections 188 and 189 described above, Senate
Bill No. 1437 added section 1170.95 (since renumbered as 1172.6). (Stats. 2018,
ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) As relevant here, section 1172.6 allows a person
convicted of murder under prior law to petition the court to vacate their conviction and be
resentenced on any remaining counts. (§ 1172.6, subd. (a).) All of the following
conditions must apply to warrant section 1172.6 relief: “(1) A complaint, information, or
indictment was filed against the petitioner that allowed the prosecution to proceed under
a theory of felony murder, murder under the natural and probable consequences
doctrine[,] or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime”; “(2) The petitioner was convicted of murder . . .
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could
4
have been convicted of murder”; and “(3) The petitioner could not presently be convicted
of murder . . . because of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a).) Section 1172.6, subdivision (c), requires the court to appoint
counsel for all properly pleaded petitions, and then conduct a prima facie analysis, with
briefing by the parties, as to the petitioner’s eligibility before determining whether to
issue an order to show cause.
Effective January 1, 2022, Senate Bill No. 775 (2020-2021 Reg. Sess.) amended
section 1172.6 to, among other things, “[c]larif[y] that persons who were convicted of
attempted murder . . . under a theory of felony murder and the natural probable
consequences doctrine are permitted the same relief as those persons convicted of murder
under the same theories.” (Sen. Bill No. 775, Stats. 2021, ch. 551, § (1)(a).)
Accordingly, section 1172.6, subdivision (a) provides that “[a] person convicted of . . .
attempted murder under the natural and probable consequences doctrine . . . may file a
petition with the court . . . to have the petitioner’s . . . attempted murder . . . conviction
vacated and to be resentenced on any remaining counts when all of the following
conditions apply: [¶] (1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of . . . attempted murder
under the natural and probable consequences doctrine. [¶] (2) The petitioner was
convicted of . . . attempted murder . . . following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could have been convicted of . . . attempted murder. [¶]
(3) The petitioner could not presently be convicted of . . . attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
If the petition presents a prima facie showing of entitlement to relief, the court
issues an order to show cause. (§ 1172.6, subd. (c).) The court then “hold[s] a hearing to
determine whether to vacate the . . . attempted murder . . . conviction and to recall the
sentence and resentence the petitioner on any remaining counts in the same manner as if
the petitioner had not previously been sentenced, provided that the new sentence, if any,
5
is not greater than the initial sentence.” (§ 1172.6, subd. (d)(1).) The bar for establishing
a prima facie claim for relief is very low, and “[i]n reviewing any part of the record of
conviction at this preliminary juncture, a trial court should not engage in ‘factfinding
involving the weighing of evidence or the exercise of discretion.’ ” (People v. Lewis
(2021) 11 Cal.5th 952, 972 (Lewis).)
B. Hearing to determine if Villanueva’s resentencing petition raised prima facie
claim
At the hearing, the prosecutor urged the trial court to rely on the preliminary
hearing transcript, which was attached to the opposition papers, because Villanueva
stipulated to that transcript as providing a factual basis for his plea. The prosecutor
argued the transcript demonstrated that Villanueva directly aided and abetted Diaz in his
attempt to kill John Doe 2.
In opposition, Villanueva maintained that the court was not permitted to engage in
factfinding or make credibility determinations at this stage. In his view, the record was
ambiguous as to whether Villanueva knew that Diaz planned to shoot anyone and
whether he acted with the intent to aid Diaz when John Doe 2 was shot.
In response, the trial court contested Villanueva’s characterization of the record,
stating: “You’re saying he was there and that’s all he did. That’s not all he did according
to the prelim transcript. We know somebody was shot and killed. He was present when
that person was shot and killed. A second person tried to leave. The evidence presented
at the preliminary hearing was he stepped in his way and blocked him.”
After hearing additional argument from the parties, the court denied the petition,
finding that Villanueva failed to state a prima facie case of relief. In explaining its
decision, the court noted that Villanueva “is clearly an aider and abettor and has not met
the prima facie showing. [¶] The Court is making that finding based upon the evidence
6
set forth in the preliminary hearing.”6 However, the court also acknowledged that, if it
were not permitted to rely on the preliminary hearing transcript, it would find that
Villanueva “has made a prima facie showing.”
C. The trial court erred in denying the petition for failure to state a prima facie
claim for relief
We agree with the parties that Villanueva’s petition presented a prima facie
showing of relief, and nothing in the record established as a matter of law that he is
ineligible for relief under section 1172.6. (Lewis, supra, 11 Cal.5th at p. 970.)
As the California Supreme Court has made clear, “the prima facie inquiry under
[section 1170.95,] subdivision (c) is limited. Like the analogous prima facie inquiry in
habeas corpus proceedings, ‘ “the court takes petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved. If so, the court must issue an order to
show cause.” ’ ([People v. Drayton (2020) 47 Cal.App.5th 965,] 978, quoting Cal. Rules
of Court, rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an evidentiary hearing.’
(Drayton, at p. 978, fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456.)
‘However, if the record, including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified in making a credibility
6
The court indicated that it was following People v. Nguyen (2020) 53
Cal.App.5th 1154, 1168, when it relied on the preliminary hearing transcript to find that
Villanueva had failed to state a prima facie case for relief. However, the court expressly
sought “additional guidance from the Appellate Court” on whether it was appropriate to
consider the preliminary hearing transcript in cases resolved by plea, noting that there
was a “split of authority” on this question. Because we conclude that the court erred by
engaging in factfinding, we need not and do not reach the question of whether the
preliminary hearing transcript may be reviewed in deciding whether a resentencing
petition states a prima facie claim for relief.
7
determination adverse to the petitioner.” ’ (Drayton, at p. 979, quoting Serrano, at
p. 456.)” (Lewis, supra, 11 Cal.5th at p. 971.)
Nothing in the record establishes as a matter of law that Villanueva was ineligible
for relief. The trial court’s finding that Villanueva was a direct aider and abettor rests on
the type of factfinding in which the trial court may not engage at the prima facie stage.
D. Proceedings on remand
Because the Attorney General has raised additional points regarding the scope and
conduct of the evidentiary hearing, we briefly address those points and provide limited
guidance to the trial court in that regard.
At the hearing, the prosecution must “prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).) Both the prosecutor
and the petitioner may offer new or additional evidence, subject to the Evidence Code, to
meet their respective burdens of proof. The court also “may consider evidence
previously admitted at any prior hearing or trial that is admissible under current law,
including witness testimony, stipulated evidence, and matters judicially noticed.”
(§ 1172.6, subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing
pursuant to subdivision (b) of section 872 is inadmissible at the evidentiary hearing,
unless made admissible by another exception to the hearsay rule. (§ 1172.6,
subd. (d)(3).)
1. The issue of intent
The Attorney General first claims that, on remand, Villanueva’s original plea to
the charge of attempted murder precludes him from litigating the issue of intent, limiting
him to contesting only whether he acted to directly aid and abet the direct perpetrator.
Villanueva counters that his plea was not a stipulation to any particular theory of
attempted murder. Had the matter proceeded to trial, the prosecution could have (under
the applicable law at the time) argued he was guilty under either a natural and probable
consequences theory or as a direct aider and abettor. Villanueva also points out the
8
district attorney expressly conceded this point in her opposition to his petition for
resentencing.
We agree with Villanueva on this issue. The record of conviction lacks “assurance
of the basis for the conviction.” (People v. Rivera (2021) 62 Cal.App.5th 217, 237.)
Having “offered a theory under which the evidence . . . was consistent with his guilt” of
attempted murder “under the natural and probable consequences doctrine,” Villanueva
“created a factual dispute that cannot be resolved at the prima facie stage since nothing in
the record definitively foreclosed his theory.” (Id. at p. 239.) That dispute must be
addressed at the evidentiary hearing.
2. Admissibility of John Doe’s 2 hearsay statement
The Attorney General also argues that John Doe 2’s statement to the police that
Villanueva deliberately impeded his attempt to run away will be admissible at the
evidentiary hearing under the spontaneous statement exception (Evid. Code, § 1240) to
the hearsay rule. Villanueva disagrees, claiming in the alternative that: (1) the matter
was forfeited as it was not raised below; (2) the statement does not fall within the
spontaneous statement exception; and (3) the matter is not ripe for review. We agree
with Villanueva that the question is not ripe.
“The ripeness requirement prevents courts from issuing purely advisory opinions.
[Citation.] It is founded on ‘the recognition that judicial decisionmaking is best
conducted in the context of an actual set of facts so that the issues will be framed with
sufficient definiteness to enable the court to make a decree finally disposing of the
controversy.’ ” (In re M.F. (2022) 74 Cal.App.5th 86, 106.) The trial court is best placed
in the first instance to rule on any disputes regarding the admissibility of the evidence
both parties seek to present at the section 1172.6 hearing and we presume it will follow
the applicable law in so doing.
9
III. DISPOSITION
The trial court’s April 14, 2022 order denying Villanueva’s Penal Code section
1170.95 petition for resentencing is reversed. On remand, the trial court shall issue an
order to show cause under Penal Code section 1172.6, subdivision (c), and hold a hearing
pursuant to Penal Code section 1172.6, subdivision (d)(3). At that hearing, the trial court
shall apply current law in its consideration of Villanueva’s petition.
10
___________________________________
Wilson, J.
WE CONCUR:
______________________________________
Bamattre-Manoukian, Acting P. J.
______________________________________
Danner, J.
People v. Villanueva
H049951